STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
LARRY A SCHMIDT, Applicant
METRO MILW AUTO AUCTION, Employer
NATIONAL UNION FIRE INS
WORKER'S COMPENSATION DECISION
Claim No. 1998-012175
The administrative law judge issued her decision in this matter on May 30, 2000. In a letter dated June 2, 2000, and received by the department on June 5, 2000, Metro Milwaukee Auto Auction and National Union Fire Insurance Company of Pittsburgh (hereinafter "respondents") asked the administrative law judge to modify her order to eliminate reimbursement of medical expenses to Aetna US Health Care, and to apply apportionment of liability to temporary disability and medical expenses, as she had to permanent partial disability. This letter indicated that it should be treated as a petition if the administrative law judge did not agree to the requested modifications. In a letter dated June 5, 2000, and received by the department on June 8, 2000, the applicant agreed that Aetna had waived subrogation for medical expenses, and indicated that he had no further comment "at this time" regarding apportionment of benefits.
The last day for a timely petition was June 20, 2000, and on June 22, 2000, the department sent the parties a letter indicating that respondents' letter of June 2, 2000, had been accepted as a petition. This prompted the applicant to submit an answer and cross-petition on June 26, 2000, which was received by the commission on June 27, 2000. Cross-petitions are subject to the same 21-day appeal period as petitions (Wis. Admin. Code § LIRC 1.026).
On December 19, 2000, the commission issued an order pursuant to Wis. Stat. § § 102.17(1)(g) and 102.18(3), for the taking of additional medical evidence in the form of an independent medical review by a physician chosen by the department. This independent medical review was performed on February 7, 2001, and the matter is again before the commission for decision.
At issue are the timeliness of the applicant's cross-petition, as well as nature and extent of disability and liability for medical expense attributable to the conceded work injury of January 12, 1998.
The commission has carefully reviewed the entire record in this matter, and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CROSS-PETITION
The applicant's cross-petition was not filed within 21 days of the administrative law judge's decision and therefore was not timely. While the applicant was aware that respondents' request for modification, if granted, would result in a new 21-day appeal period, the applicant had no assurance that the request would be granted. It was well within the applicant's abilities to timely file a cross-petition. Accordingly, the commission finds that the applicant has not shown probable good cause that his cross-petition was late for a reason beyond his control, and his cross-petition is dismissed.
However, the commission's review is an original proceeding in which the commission acts as the ultimate finder of fact and law. DILHR v. LIRC, 16 Wis. 2d 231, 242, 467 N.W.2d 545 (1991); State v. Industrial Commission, 233 Wis. 461, 465, 289 N.W. 767 (1940). As set forth in Wis. Stat. § 102.18 (3), in reviewing an administrative law judge's decision the commission may either affirm, reverse, set aside, or modify it, in whole or in part. Accordingly, when the commission disagrees with any finding in a decision before it on review, it is empowered to change that finding. Even though a particular party has failed to submit a timely petition or cross-petition, there is no law or policy which prevents that party from arguing any issue in the case in its responsive brief to the commission, as long as another party has brought the case before the commission via a timely petition. The commission's policy is to accord lesser weight to arguments raised in a responsive brief, as opposed to those raised in a timely petition or cross-petition. But when such arguments are found to have a solid basis in law and/or fact, the commission will act upon them. As will be seen, such is the case with the argument in this case that the administrative law judge incorrectly apportioned liability for the applicant's claimed disability and medical expense.
COMPENSATION ISSUES
The applicant, whose birth date is June 1, 1951, injured his back while working for an Illinois employer in 1993. He underwent a spinal fusion of L4 through S1 and was released to work with restrictions in 1994. His surgeon was Dr. Michael Major. He was seen by Dr. Major on April 19, 1996, with a complaint of "some back pain." Dr. Major's note indicated the applicant's fusion was solid and x-rays did not show any change except for arthritis "just above" the fusion.
Beginning in 1996, the applicant worked for the employer as a vehicle condition report writer. He inspected leased vehicles for damage and wrote estimates for repair. On January 12, 1998, he was at work when he slipped on icy pavement and landed on his left hip, rolling onto his back. He was unable to complete his shift and was seen at a clinic that day. A bone scan was done on January 14, 1998, and the radiologist read it as showing a likely fracture at the junction of the ileum and pubis bones.
The applicant saw Dr. Steven Trinkl on January 20, 1998. Dr. Trinkl diagnosed a left superior pubic ramus fracture and a left S1 joint strain. He released the applicant to return to work for four hours per day on February 19, 1998, but the applicant did not return. He was referred back to Dr. Major on March 23, 1998, with complaints of back and right leg pain since the fall on January 12, 1998. Dr. Major took x-rays which showed a solid fusion at L4-S1, but a retrolisthesis of L3 on L4. Dr. Major believed this later finding could easily explain the applicant's back and right thigh pain, since L3 and L4 nerve root problems cause anterior thigh pain. Dr. Major recommended an epidural injection but foresaw the need for an add-on, one-level spinal fusion if conservative measures did not help. Conservative measures did not help and on July 14, 1998, Dr. Major performed an anterior/posterior fusion with disc removal and reinstrumentation at L3-4. In a letter addressed to respondents' attorney dated December 15, 1998, Dr. Major wrote:
Larry Schmidt had a compromised back when he had his second injury in January of 1998. If his back had been unfused at the time of his injury, it's possible that the injury in question would not have caused the need for his second surgical treatment.
In situations like this I felt in the past it's been fair to apportion 50 percent of the responsibility for the surgical treatment to the injury in question and 50 percent to the pre-existing (sic) condition. That would then mean that any additional disability would be apportioned in a similar fashion.
Dr. Major also completed a WC-16-B dated August 31, 1998, in which he checked the "direct causation" box for the traumatic incident of January 12, 1998, and assessed 10 percent additional permanent partial disability.
At respondents' request, Dr. James Gmeiner examined and evaluated the applicant on July 8, 1998. In his report dated July 14, 1998, Dr. Gmeiner opined:
The most significant findings were an extremely elevated clinical picture of illness behavior with numerous inappropriate findings, and nonorganic findings which do not have an anatomic and physiologic basis. The examinee is neurologically intact. The limited range of motion of the trunk is not due to mechanical factor, but is due to voluntary muscle guarding with suboptimal performance.
I am of the medical opinion that there are significant hidden factors interfering with this examinee's ability to fully recover. It would be very unlikely that one episode such as a fall would convert a two-level fusion into an unstable spine requiring surgical treatment.
* * *
With the bone scan showing no significant fracture that is evident involving the pubic ramus, an end of healing would have been reached by at least March 10, 1998. This would be allowing approximately two months of recovery for a soft tissue injury.
Dr. Gmeiner diagnosed the work injury as a lumbosacral sprain/strain with no permanent disability and a healing plateau on March 10, 1998. There was no opinion submitted from Dr. Gmeiner commenting on the applicant's surgery of July 14, 1998.
In his independent medical report dated February 7, 2001, Dr. James Leonard opined:
He did have a definite fall at work on January 12, 1998. It is questionable whether or not he had a fracture of the pubic ramus and may have just had trauma to this area based on the varying views on the two bone scans from January and March of 1998.
Regardless of this, he did definitely have a work-related fall and this was a work-related injury. He had a definite change in his status with a functional break noted from the time of his injury. Whether or not he had the retrolisthesis of L3 on L4 prior to the injury of January 12, 1998, is unknown. However, since his pain came on with this injury, it is my opinion that the surgery done in the summer of 1998 was necessitated by his work-related fall of January 12, 1998. If the retrolisthesis was present prior to the fall in question, then it is my opinion that the fall of 1/12/98 would have aggravated this condition at L3-4 beyond its normal progression.
Dr. Leonard's opinion that the July 1998 surgery was necessitated by the work-related fall of January 12, 1998, is accepted as credible. The applicant did have a preexisting lumbosacral back condition, but his symptoms, including physical disability, substantially worsened after that fall. This lends credence to Dr. Leonard's opinion that the fall aggravated the preexisting condition beyond its normal progression and caused the surgery.
Respondents have argued that Dr. Leonard's opinion should be disregarded because he assumed that the applicant had not missed a significant amount of work since 1995, when in fact he only worked for two months in 1995, and for another employer in 1996, before being rehired by the employer in November 1996. Respondents also fault Dr. Leonard's report because it does not recount the fact that the applicant's 1992 injury and 1993 surgery caused him to be restricted from working as a mechanic.
Dr. Leonard may have been unaware of the length of time the applicant was off work in 1995-96, but his report indicates that he was fully aware of the 1992 injury and 1993 surgery. Dr. Leonard also noted that following the 1993 surgery, the applicant was given restrictions of 25-35 pound maximum lifting and the need to make frequent position changes. He further noted that the applicant saw Dr. Major in 1996 for back pain, that x-rays taken at that time showed a solid fusion, and that there were no other records of ongoing treatment from April of 1996 up to the applicant's fall on January 12, 1998. Taken together, this evidence demonstrates that Dr. Leonard was adequately aware of the applicant's preexisting condition, including his preexisting physical restrictions, when he rendered his opinion.
It is well settled that employers take employees "as is." When the work activity aggravates, accelerates, and precipitates a preexisting condition beyond normal progression, as occurred with the applicant's back condition in this case, there is a compensable work injury. Lewellyn v. DILHR Department, 38 Wis. 2d 43, 59, 155 N.W.2d 678 (1968); M & M Realty Company v. Industrial Commission, 267 Wis. 52, 63, 64 N.W.2d 413 (1954). Dr. Leonard credibly opined that the work-related fall on January 12, 1998, necessitated the surgery of July 14, 1998. Therefore that surgery, together with the attendant disability and medical expense, were credibly demonstrated to have been effects of the work injury.
In his letter of December 5, 1998, Dr. Major gave a medical and a legal opinion. His medical opinion was that had the applicant's back been unfused when he fell on January 12, 1998, "it's possible" that the fall would not have caused the subsequent surgery. His legal opinion was that in situations like this, he believes "it's fair" to apportion 50 percent liability to the recent injury and 50 percent to the preexisting condition. The credible medical evidence demonstrates that the surgery would not have been necessary in July of 1998, except for the fact that the applicant aggravated and accelerated his back condition beyond normal progression by falling on January 12, 1998. The law in Wisconsin provides that in such circumstances the employer and its insurance carrier are liable for the entire disability caused by such surgery. M & M Realty v. Industrial Commission, 267 Wis. at 63. Dr. Major's opinion that apportionment of responsibility might be "fair" has no support in the law.
Accordingly, respondents are fully liable for the claimed periods of temporary disability as follows: $8,706.60 (eight thousand seven hundred six dollars and sixty cents) in temporary total disability benefits for the period between July 17, 1998 and January 31, 1999; $618.24 (six hundred eighteen dollars and twenty-four cents) in temporary partial disability benefits for the period between January 31, 1999 and February 28, 1999; and $788.40 (seven hundred eighty- eight dollars and forty cents) in temporary partial disability benefits for the period between February 28, 1999 and July 19, 1999. These benefits total $10,113.24 (ten thousand one hundred thirteen dollars and twenty-four cents).
Respondents are also fully liable for the additional 10 percent permanent partial disability attributable to the lumbar fusion surgery performed on July 14, 1998. This disability percentage is consistent with Dr. Major's assessment, as well as with the minimum percentage due pursuant to Wis. Admin. Code § DWD 80.32(11). This results in 100 weeks of compensation due at the rate of $179.00 per week, for a total of $17,900.00. As of April 19, 2001, the accrued amount of this permanent partial disability will be $16,348.67. A 20 percent attorney's fee is due against this award in the present value amount of $3,577.99 (interest credit of $2.01). Costs are also due to applicant's attorney in the amount of $274.65. The net amount currently due the applicant for accrued permanent partial disability is $12,804.28.
Aetna Life Insurance Company paid $10,213.67 to the applicant for long-term disability benefits, which offset dollar-for-dollar the $10,113.24 otherwise due for temporary disability. Therefore, pursuant to Wis. Stat. § 102.30, respondents shall reimburse Aetna $10,113.24, representing such offset. (1) The applicant's attorney is not entitled to a fee against the temporary disability award, which is completely offset by the conceded long-term disability benefits. There is no provision in the statutes for offsetting long-term disability benefits against awards due for permanent partial disability.
Reasonably required medical expenses are due in the amount of $53.40 to Dr. Michael R. Major, $84.00 to Dr. Kuang S. Kim, $55.70 to North Shore Radiologists, S.C, $489.50 to St. Michael Hospital, $549.09 to Dr. A. O. Mammen, $344.85 to Kenosha Hospital and Medical Center, and $230.50 as out-of-pocket medical expense to the applicant.
Dr. Major has continued to monitor the applicant's condition, and given the seriousness of his surgery, it is appropriate to leave this order interlocutory.
INTERLOCUTORY ORDER
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant as accrued permanent partial disability in the sum of twelve thousand eight hundred four dollars and 28 cents ($12,804.28); to applicant's attorney, James A. Pitts, fees in the amount of three thousand five hundred seventy-seven dollars and ninety-nine cents ($3,577.99), and costs in the amount of two hundred seventy-four dollars and sixty-five cents ($274.65); to Dr. Michael R. Major the sum of fifty-three dollars and forty cents ($53.40); to Dr. Kuang S. Kim the sum of eighty-four dollars ($84.00); to North Shore Radiologists, S.C. the sum of fifty-five dollars and seventy cents ($55.70); to St. Michael Hospital the sum of four hundred eighty-nine dollars and fifty cents ($489. 50); to Dr. A. O. Mammen the sum of five hundred forty-nine dollars and nine cents ($549.09); to Kenosha Hospital and Medical Center the sum of three hundred forty-four dollars and eighty-five cents ($344.85); and to the applicant as reimbursement for out-of-the-pocket medical expenses the sum of two hundred thirty dollars and fifty cents ($230.50).
Beginning on May 19, 2001, respondents shall also pay to the applicant the monthly sum of seven hundred seventy-five dollars and sixty-seven cents ($775.67), until the currently-unaccrued permanent partial disability amount of one thousand two hundred forty-one dollars and seven cents ($1,241.07) has been paid to him.
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed April 13, 2001
schmila2 . wpr : 185 : 8 ND § 3.37 § 9.2
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission had the benefit of Dr. Leonard's medical opinion when making its decision concerning the cause of the applicant's July 1998 surgery. The commission reversed the administrative law judge's apportionment of the permanent partial disability award based on Dr. Leonard's written medical opinion and the law as recited in the commission's decision.
cc:
Attorney James A. Pitts
Attorney Michael C. Frohman
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Footnotes:
(1)( Back ) The applicant may wish to file amended tax return(s) to recoup withholding tax deducted from Aetna's long-term disability payments.
uploaded 2001/04/16